State v. Higgs

• Decision Date: 05 November 2013
• Docket Number: No. 43097–5–II.,43097–5–II.
• Citation: 311 P.3d 1266,177 Wash.App. 414
• Parties: STATE of Washington, Respondent. v. Nicholas M. HIGGS, Appellant.
• Court: Washington Court of Appeals

177 Wash.App. 414

311 P.3d 1266

STATE of Washington, Respondent.

v.Nicholas M. HIGGS, Appellant.

No. 43097–5–II.

Court of Appeals of Washington, Division 2.

Oct. 29, 2013.

As Amended Nov. 5, 2013.

Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Appellant.

Yarden F. Weidenfeld, Office of the Skamania County Prosecutor, Stevenson, WA, for Respondent.

MAXA, J.

¶ 1 Nicholas Higgs appeals his convictions for unlawful possession of a controlled substance (methamphetamine), unlawful possession of a controlled substance (amphetamine), use of drug paraphernalia, and unlawful delivery of a controlled substance (amphetamine). He argues that (1) the warrant under which law enforcement officers seized evidence during a search of his residence was overbroad because most of its portions were not supported by probable cause, (2) his trial counsel was ineffective for failing to assert the overbroad warrant as a basis for his motion to suppress the seized evidence, and (3) evidence of methamphetamine residue found during the search was insufficient to support his unlawful possession of methamphetamine conviction.

¶ 2 Although the State concedes that portions of the warrant were overbroad, we consider this issue only in the context of ineffective assistance of counsel because Higgs asserts overbreadth for the first time on appeal. We hold that Higgs's counsel was not ineffective because (1) the warrant's portions supported by probable cause can be severed from the overbroad portions and therefore the trial court likely would have denied a motion to suppress the drug evidence seized under the valid portion of the warrant, and (2) Higgs cannot show that the admission of the evidence seized under the invalid portion of the warrant prejudiced him. And because the unlawful possession statute does not require a minimum quantity of a controlled substance to support a conviction, we hold that the evidence of methamphetamine residue found in Higgs's residence was sufficient to support his unlawful possession of methamphetamine conviction. We affirm Higgs's convictions.

FACTS

¶ 3 A woman told law enforcement officers that she had observed drugs in Higgs's home, and one of the officers applied for a search warrant. The search warrant affidavit stated that the informant told officers (1) she had observed Higgs fill a light bulb with a crystalline substance and smoke the substance from the light bulb by holding a lighter to the bottom of the bulb and melting the substance; (2) she then observed him use an empty pen shaft to transfer more crystalline substance from a small plastic baggie to the bulb and smoke from it at least three times; and (3) she recognized the substance to be methamphetamine because she used to smoke it.

¶ 4 The district court issued a warrant to search Higgs's residence for methamphetamine, as well as for items used in its distribution and packaging and for records related to a “distribution operation”.¹ Suppl. Clerk's Papers (CP) at 73–75. The officers executed the search warrant and seized a baggie containing methamphetamine residue, a light bulb smoking device with a pen straw containing methamphetamine residue, a bottle of amphetamine pills, a rental agreement showing the home was rented to Higgs, a department of licensing document belonging to Higgs, and Higgs's driver's license. The State charged Higgs with unlawful possession of a controlled substance (methamphetamine) ( RCW 69.50.4013), unlawful possession of a controlled substance with intent to manufacture or deliver (amphetamine) ( RCW 69.50.401(1)), use of drug paraphernalia ( RCW 69.50.412(1)), and unlawful delivery of a controlled substance (amphetamine) ( RCW 69.50.401(1)).

¶ 5 Higgs moved to suppress the items seized from his residence under the warrant. He argued that probable cause did not support the warrant because the informant's reliability was unproven and because she did not have an adequate basis for her knowledge of the items to be found in Higgs's residence. Higgs did not argue at that time that the warrant was overbroad. The trial court denied the motion. The jury found Higgs guilty of two counts of unlawful possession of a controlled substance (methamphetamine and amphetamine²), use of drug paraphernalia, and unlawful delivery of a controlled substance (amphetamine).

ANALYSIS

A. Overbreadth Argument Made for First Time on Appeal

¶ 6 Higgs argues that we should reverse his convictions because the evidence used to convict him was obtained under an overbroad search warrant. However, at the suppression hearing he argued only that the warrant was not supported by probable cause because ARH's reliability as an informant was unproven and because she did not have an adequate basis for her knowledge. Higgs now argues for the first time on appeal that the evidence found in his home should have been suppressed because it was seized under an overbroad warrant.

¶ 7 RAP 2.5(a) states that “[t]he appellate court may refuse to review any claim of error which was not raised in the trial court”. The purpose underlying issue preservation rules is to encourage the efficient use of judicial resources by ensuring that the trial court has the opportunity to correct any errors, thereby avoiding unnecessary appeals. State v. Robinson, 171 Wash.2d 292, 304–05, 253 P.3d 84 (2011). Higgs objected to admission of the seized evidence below, but not on the ground that the search warrant was overbroad. Even if a defendant objects to the introduction of evidence at trial, he/she “may assign evidentiary error on appeal only on a specific ground made at trial”. State v. Kirkman, 159 Wash.2d 918, 926, 155 P.3d 125 (2007). Accordingly, Higgs failed to preserve his overbreadth claim for our review, and we do not consider it.

¶ 8 Although RAP 2.5(a) generally precludes this court's review of an unpreserved claim in the trial court, the rule states that a party may raise particular types of errors for the first time on appeal. One of the exceptions is RAP 2.5(a)(3), which allows review of “manifest error affecting a constitutional right”. But Higgs fails to argue that any of the exceptions listed in RAP 2.5(a) apply. Instead, he argues only that his counsel was ineffective for failing to raise the overbreadth argument below. Therefore, we do not address any of the exceptions to RAP 2.5(a).

B. Ineffective Assistance of Counsel

¶ 9 Higgs argues that his counsel was ineffective for failing to argue at the suppression hearing that the warrant was overbroad, and that he was prejudiced as a result. We disagree. Because the trial court probably would not have suppressed the evidence seized under the valid part of the warrant, we hold that Higgs cannot show that his counsel's failure to make an overbreadth argument prejudiced him.

1. Test for Ineffective Assistance

¶ 10 To prevail on an ineffective assistance of counsel claim, the defendant must show both that (1) defense counsel's representation was deficient and (2) the deficient representation prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Grier, 171 Wash.2d 17, 32–33, 246 P.3d 1260 (2011). The failure to show either element ends our inquiry. State v. Hendrickson, 129 Wash.2d 61, 78, 917 P.2d 563 (1996), overruled on other grounds by Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006). Representation is deficient if, after considering all the circumstances, it falls below an objective standard of reasonableness. Grier, 171 Wash.2d at 33, 246 P.3d 1260. Prejudice exists if there is a reasonable probability that except for counsel's errors, the result of the proceeding would have been different. Grier, 171 Wash.2d at 34, 246 P.3d 1260. We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165 Wash.2d 870, 883, 204 P.3d 916 (2009).

¶ 11 Here, the State concedes that there was no probable cause for much of the search warrant, and essentially concedes that trial counsel should have argued at the suppression hearing that the warrant was overbroad. Therefore, we address whether the failure to make this argument prejudiced Higgs.

2. Prejudice

¶ 12 In order to establish actual prejudice here, Higgs must show that the trial court likely would have granted a motion to suppress the seized evidence on overbreadth grounds. See State v. McFarland, 127 Wash.2d 322, 337 n. 4, 899 P.2d 1251 (1995). Accordingly, we address whether the search warrant was overbroad and if so, whether the valid portions can be severed.

a. Probable Cause Requirement

¶ 13 The Fourth Amendment to the U.S. Constitution provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This amendment was designed to prohibit “general searches” and to prevent “ ‘general, exploratory rummaging in a person's belongings.’ ” State v. Perrone, 119 Wash.2d 538, 545, 834 P.2d 611 (1992) (internal quotation marks omitted) (quoting Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976)). Similarly, article I, section 7 of the Washington Constitution provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

¶ 14 These constitutional provisions impose two requirements for search warrants that are “closely intertwined”. Perrone, 119 Wash.2d at 545, 834 P.2d 611. First, a warrant can be issued only if supported by probable cause. State v. Lyons, 174 Wash.2d 354, 359, 275 P.3d 314 (2012). “Probable cause exists if the affidavit in support of the warrant sets forth facts and circumstances sufficient to establish a reasonable inference that the defendant is probably involved in criminal activity and that evidence of the crime can be found at the place to be searched.” State v. Thein, 138 Wash.2d 133, 140, 977 P.2d 582 (1999). Probable...